Bruce Babbitt oral history speech transcript

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SECRETARY OF THE INTERIOR BRUCE BABBITT
SPEECH ON THE ENDANGERED SPECIES ACT
OCTOBER 22-24, 1993 DURHAM, NC
TO THE SOCIETY OF ENVIRONMENTAL JOURNALISTS
INTRODUCTION: It is my privilege and my pleasure to introduce to you the Secretary
of the Interior of the United States the Honorable Bruce Babbitt.
MR. BABBITT: Thank you very much. It’s a pleasure to be here. And I’m going to
make a confession at the outset. My intention today really not to make any news. I
think some of you will understand that. I ran for President a few years ago and upon
hearing that I am speaking to several hundred journalists with the intention of not making
any news, I assume not much doubt about why I got out of the race very early, back in
1988. But what I want to do is see if I can, at the risk of being a little bit pedantic, talk
about some of these larger issues; especially the Endangered Species Act, and the shape of
the debate that I think is coming at us well in advance of the eventual reauthorization
timetable of the Endangered Species Act.
The reason I selected this topic is because I have been up on Capital Hill in the
last several months, pushing what I thought was a remarkably uncontroversial,
uneventful, plain-vanilla, scientific institution called the National Biological Survey. I
think a scientific innovation of great importance to the future of the country, and one,
which I have been at pains to characterize as a scientific institution, if you will, the
biological analogue of the United States Geological Survey. I went up to Capital Hill
ready to say, ‘When was the last time anybody heard of a controversy involving the
United States Geological Survey?’ and here I have its biologic counterpart. All of a
sudden I am sitting in a committee locked in crossfire with your luncheon speaker trying
to think, ‘I know these Congressmen from the south are canny and he must see something
in this institution that I don’t.’ This, as they are busy sort of loading it down with
amendments including an amendment prohibiting the use of volunteers by the National
Biological Survey. Then I started thinking about it and it became clear very quickly. I
called him up and I said, “Mr. Hayes, you’re a tricky, no-good devil! What you’re doing
is using my Bill as the stage for a dress rehearsal debate about the Endangered Species
Act!” He sort of smiled and said, “That’s exactly what I’m doing!” So that brings me
here today to take the bait, if you will, and to talk about the Endangered Species Act and
what those issues are and what I think our response is.
The Endangered Species Act, undeniably, is the most innovative, wide reaching,
and I believe, successful environmental law that has been passed or enacted in the last
quarter century. In 1993, this year, it is precisely twenty years old in it’s modern form
and I believe it has been remarkably successful. I can site case after case of resurgence of
and rebirth of the American Alligator, the fact that the skies are now once again graced by
many Bald Eagles, the Peregrine Falcon; now moving from near extinction to the threshold
of de-listing. There are many, many exception stories, including not in the least, the
forest plan that has now been worked out in the Cascade Forest ecosystem in the Pacific
Northwest.
The opponents of the Endangered Species Act understand those successes and
those facts. So they have kind of come at us from a difference direction. There is now a
collection of different groups assembled under a tent, who are advocating a new concept.
It’s called Taking Doctrine. And that’s what you are going to be hearing next year. It’s
this notion that what the Endangered Species Act is really about unconstitutional,
uncompensated, taking of private property. If you want to see the dry run of what that
argument is going to look like you need to dig up a Bill call HR-1388, which is styled as
the Just Compensation Act of 1993. I recommend that you have a look at it, because this
is where it’s coming from. It’s a pretty simple Bill. It says that it would require any
federal agency to compensate owners from private property, and I quote; “for any
diminution in value”, close quote, caused by any regulatory action taken under designated
environmental laws. There is a little list of them, and right at the top is Endangered
Species. So what they are saying is ‘Secretary of the Interior, henceforth, when under the
Endangered Species Act takes any regulatory act of any kind, which causes any
diminution in value of any kind of property, much dip into the public treasury and begin
paying, under the mechanism specified in that Bill for any diminution in the value of any
kind of property; real property or any other property. I was pondering that the other
night and I thought that I needed some examples of what these folks are advocating. The
first example I came to is the Kesterson National Wildlife Refuge in California. Some of
you may remember that a few years ago, Kesterson, which is one of the great migratory
bird stops on the Pacific flyway, had a problem. The waterfowl were dying. They were
deformed at birth. There were all sorts of strange things happening. It turned out that
there was selenium poison, which was running into the wildlife refuge from irrigation tail
water being put into the refuge as drainage water from an agricultural area. Obviously,
under the Endangered Species Act, I am mandated to take some regulatory action against
what was happening at Kesterson. My regulatory act is as follows; clean up the
pollution or we’re going to sue you. It’s real simple. What this act would say surely and
simply is by saying, “stop the pollution” what am I doing? I am undeniably causing a
diminution in value of a property right. It’s going to cost those farmers money to stop
the selenium flow into that National Wildlife Refuge. And under the literal, exact terms of
this Bill they’ll comply but they’ll send me the bill for their clean up actions. That’s
exactly what these folks have in mind when they are talking about “takings”. They are
saying, ‘we don’t like environmental laws. And if they inconvenience us, we’re going to
send you the bill and ask the public to pay.’ I guess what I would say, rather than the old
legal maxim, “make the polluters pay”, what they are saying is that ‘it pays to pollute
because the government will reimburse your costs’.
Those of you who have covered the Everglades in Florida, I think can readily see
another implication of this Bill. The issue in the Everglades is phosphate contaminated
drainage water, which is causing nutrification of the Everglades and a corresponding
decline in the productivity of the fish resource, the decline of the Snail Kite which is
linked to some of those resources and a variety of other endangered species. What is my
regulatory action in the Everglades? It is a message to the sugar companies, “Stop, clean
it up!” That message is being sent right now in the form of an action in the United States
District Court. Okay, if this Bill passes, what happens? Sugar growers go into federal
court and say, ‘you better dismiss this lawsuit because we’re not paying anything! Sure,
we’ll clean up the phosphate, but they Interior Department gets the bill because we’ve
been inconvenienced. If you make us clean this up, we’ll have a little less profit next year
and that is a diminishment in value of our property’. I could give you a lot of other
examples, but I’ll stop right there. You can see my point.
If they get away with this kind of reversal of environmental history, start thinking
about what happens after that. Pretty soon they are going to be over at the EPA saying
that when chemical companies incur losses when pesticides found to cause cancer are
banded, what happens; well, the chemical companies will send their bill to the
government. When the federal Food and Drug Administration takes a breast implant off
of the market they will send a bill to the FDA saying, ‘hey, we lost money as the result
of a regulatory action!’ When the Federal Aviation Administration refuses to certify a
defective aircraft engine; where do you stop?
The fact is that our society has had a fundamental premise; and that is that
regulatory action, taken for a valid public purpose can have consequences that
inconvenience people. In fact, from time to time, they do diminish someone’s rights in
the public interest. The most interesting example I can think of, that I would start with,
is planning and zoning. Think of this one: suppose that the Washington, D. C. City
Council, that notable repository of wisdom and governmental skill, decides to zone a
corner lot in my neighborhood for a strip shopping center. I’ve got to tell you that
happens every day in every community in this country. What happens when they zone
that lot? They convert some value on a lot owner on that corner, at the same time as they
diminish the value of my residence, which is half way down that block. It has never, to
my knowledge, in the history of America been advocated that a zoning decision, which
creates a marginal increase in value at the admitted expense of someone else’s property
rights; my residential right, that that act gives me a right to compensation. Think of the
consequences, if that is the law in the United States of America! There would be chaos!
I’d round up 200 neighbors and be down in front of the Treasury saying, “Compensate
me!” Maybe we should have a tax on the people whose land is increased in value and
have a redistributionist scheme, which says ‘all winners compensate all losers every time
a road is built, a neighborhood is rezoned’. Do you see what I am getting at? It’s a way,
a pernicious way, of simply saying that ‘we are going to destroy the efficacy of
government’.
I can hear my good friend Mr. Hayes, I can hear him right know saying, ‘Bruce,
you exaggerate. You’re another one of those slick, big city lawyers pointed out all sorts
of hypotheticals’. Well, well and good! I guess he’d say that environmental regulation is
different from all of those cases I used. Maybe he would say that an environment
regulation is a special case. It’s new in American history and we’ve got to hold it to a
higher standard. But is environment regulation really that much different? Think about it;
is it really different from the kind of action that the D. C. City Council takes every day in
my neighborhood? I’d submit that environmental regulations, just like planning and
zoning have the function of protecting the larger interests of the community; air, water,
open space, whatever you want. Inevitably, on the margin, there are some winners and
some losers. I think of an example that comes from my own hometown; Flagstaff,
Arizona. It’s a really special, extraordinary place, located high in the ponderosa forests of
northern Arizona. The Flagstaff City Council, using it’s zoning powers about ten years
ago, passed a law saying that in the city limits of Flagstaff, Arizona it is a crime to cut
down a pine tree on private land, unless that pine tree is removed to make way for an
authorized improvement pursuant to the building code and the zoning laws. Now, the
response in Flagstaff, Arizona to that law, a zoning law, which I submit is preeminently
an environment law, was very positive. The residents of that community said, ‘that’s an
environmental law that works to our manifest advantage. That’s why people come to
this town!’ You walk in and you can smell the perfume of the pine forest in the air.
Everywhere you turn there is this extraordinary horizon, and it’s perfectly reasonable for
the benefit of the entire community to create habitat values to protect the wildlife and to
protect the overall image of this town. And admittedly, it will subtract from the freedom
of a landowner who says that he has ‘every constitutional right to saw down every pine
tree on his lot, and to hell with the world’! The city council is saying, “no you don’t.
You use your property in a reasonable fashion and realize an economic use. But in the
name of the overall environment of this town, we are going to post some restrictions of
landowners’. The good residents of the town of Flagstaff have accepted that and the
courts in Arizona, which is not a notably aggressive State in these kinds of things has
said, ‘yes, that’s fine’. Palmdale, California has done it with Joshua trees. Arizona limits
your right to remove cactus from state lands. Massachusetts has, under it’s zoning code a
set back requirement on every stream and waterway in the state. Those are imposed by
local governments, under zoning authority. But they are manifestly environmental
regulations.
Of course, I think you now see where I am headed. That’s really what the
Endangered Species Act is about. It’s not a land use law. It’s a law that says that we are
going to protect public property; wild, endangered species. But it is a law, which
acknowledges in many, many cases the only efficacious way to protect an endangered
species is to protect the habitat. It is undeniable that the Endangered Species Act, in
operation with it’s focus on habitat, is going to limit the ability of some landowners in
some places to do anything they want; to raze the forest, to bulldoze the habitat, to dry
up a stream which contains an endangered species. The question then becomes, ‘what are
the restrictions like?’ And when are you entitled to compensation. I did a little research
about that because I thought listening to my friend Mr. Hayes and others, that I’d be able
to find some cases of egregious abuse. I thought, “It seems to me unlikely that
Mannie Luhon and Don Odell and Jim Watt were really out there pushing this Act,
driving people into the courts to protect against their overzealous administration”. I
thought I’d have a look. So I marched some of my folks over to the Court of Claims,
where there are hundreds of takings cases of all kinds being filed in waves of protest, and I
said, “what about the Endangered Species Act?’ Do you know what I found? I found
that in the twenty years of this Act, in it’s modern form; there has not been a single case
in a Court of Claims alleging a taking under the Endangered Species Act. I want all of
you, when you are talking with Mr. Hayes next time, to sort of stuff that one in his craw,
and see what he says!
The fact that in twenty years, we’ve listed some 800 species, put up habitat
preservation plans, spent a thoughtful and reasonable amount; this has never created a
takings case in the Court of Claims is to me really not the end of the inquiry. And I’ll tell
you why. It’s not just about whether or not unconstitutionally taken someone’s
property. No one has yet alleged any case. Constitutional standard for a taking, I think,
is subject to debate and discussion, coming out of the Lucas cases. You have to
substantially deprive of any reasonable use of their property. You’ve really got to shut
them down. But I would agree with the critics that this is hardly the appropriate
standard for the elected representatives of the public, the Clinton administration and its
mandarins to be bragging about, saying, “Well, we’ve never committed a constitutional
take.” It seems to me that the standard ought to be higher. We ought to be held to a
standard of reasonables. We ought to be able to demonstrate that we are administering
this law in a way that is sensitive and that isn’t imposing hardship on people. And that
we have stopped short, not only of a constitutional taking, but we actually are
administering this Act in a sensible way which does not inflict unnecessary inconvenience
and hardship on the citizens who put us in office. What I would submit and will submit,
as this debate begins, is that we’re doing a pretty good job of it. And the reasoning is that
across the last twenty years we have begun to devise some pretty innovative approaches
to this issue of taking steps to preserve habitat on public and private lands without
shutting down private landowners. The first step as we go through this process in any
kind of situation is to ask a simple question. Are there public lands available that we can
use as the core of the protection scheme? Public land, owned by all of us, where there is
no taking question. We’ve been fairly successful at that. You go to California and ask
people about the California Spotted Owl. Have any of you have written stories about the
California Spotted Owl? No, you know why? It turns out that by good fortune, it turns
out that the habitat is mostly public land, about 99% up in the Sierra Nevada in northern
California. Nobody is squawking. That is gratuitous and nice. Whenever we can that, we
do. In all cases for this public land we try to construct plans that say that the public land
is going to carry the burden of the management load. That’s been done in the Pacific
Northwest with the Spotted Owl controversy there. The management plan that has come
out for the northwest has stronger provisions for public land because that enables us to
tread a little more lightly on the private land owned by individuals and the timber
companies; the habitat conservation rules outside the core areas; rest a little more light as
a result on the public lands. Another approach that we’ve used that I think you are going
to see a lot more of is the flat out mitigation. A good example of this is the Desert
Tortoise, which is found in the Great Basin of Nevada, California and Arizona. Several
years ago the city fathers of Las Vegas, which is a boom-town if there ever was one,
discovered that all subdivision land had already been taken by the Desert Tortoise; he got
there first. They came to us and said, “What are we going to do?” We worked out an
interesting plan. We said to the developers, “As you bulldoze tortoise habitat for
subdivisions, we will levee a surcharge on each lot; just like a surcharge for water, sewer
or roads. We’ll put it in a back account and we’ll use it for mitigation.” We would go out
a little further out and buy up the private lands that are in holdings in the public domain
and set up tortoise reserves. Your mitigation will just be a surcharge like any other type
of infrastructure charge, and we’ll use it to protect land in the out back. It’s concept
that’s been used in California on the Monterey Peninsula and a lot of other places. It’s a
way of saying to private property owners that we can rearrange the protection landscape
in a way that makes sense; you’ll see a lot more of it. There are some other cases where
just management changes work. The best example I can give you of that is the Red
Cockaded Woodpecker, which hangs out in the neighborhood around here and all across
the south. It’s a more manageable bird than the Spotted Owl because it has interesting
characteristics. It’s very picky about where it lives. It has to have an old growth tree.
But its quite eclectic about it’s dining habits. It eats all kinds of different things. And it’s
not at all picky about its neighbors. It doesn’t have high standards the social company.
You’ll find them living on golf courses, in back yards; all you have to do is make sure it’s
got good shelter and the supermarket is not too far away. For those of you who are
interested in these things, it also has excellent family values. It’s a monogamous critter.
They stay together and the young ones stick around to help raise the next generation. It’s
really an admirable bird. It’s one worthy of preservation. It turns out that given these
characteristics we were able to go to Georgia Pacific, for example, and work out a simple
little plan whereby Georgia Pacific in exchange for a favorable response from an
overbearing Department of the Interior, says that they have constructed a plan where our
biologists move out ahead of the logging crews, identifying the old growth woodpecker
trees and keep a little; very modest habitat circle around that tree. They estimate that this
procedure will impact maybe one percent of their timberland. And again, in light of the
background rules and regulations; regulating for the common good seems to me to be
pretty reasonable. It seems pretty reasonable to Georgia Pacific. You’ll see them down
here running television ads, bragging about it. I think they should, because they are a
living example of how we can solve problems.
For those of you who are from Texas, we’ve had a quite extraordinary result in a
place called the Edwards Aquifer. This is one that looked like a train wreck in the making.
The politicians were going wild. It turns out that along the Balconni’s Escarpment down
in central Texas, there are a bunch of really marvelous springs that give rise to the
headwaters of these rivers that run southeast down to the Gulf of Mexico. As fate would
have it, in these large pools there are a few, fairly uncharismatic critters living at Great
Gap, including one, which is called the Blind Texas Salamander. And I’ll tell you, it really
looked like a disaster because people were running for office and it’s going to be people,
or the Blind Texas Salamander. It’s going to be future for Texas, or, turn in over to cave
dwelling, invertebrates and blind salamanders! We got into this and took a careful look.
What was happening was that the pumping up outside of San Antonio was lowering the
groundwater table and drying up those pools. We had a careful look. We used the USGS
and others. It turned out that what Texas really needed was a groundwater management
program. So we sat down with local governments. We went up to the Texas legislature
with Governor Richards. And in a sort of quiet, thoughtful process, the Texas legislature
passed the first groundwater management law in its history, over the cries of the few
lonestar legislators who said that this was Leninism on the run in Texas! The Legislature
passed it. It’s had the incidental effect of preserving the water levels and insuring that
San Antonio’s water supply will be a lot more secure than it would have been in the
failure to limit over drafting.
This is just another interesting example of the flexibility of this Act. It is a broad
shouldered act that accommodates a lot of interesting kinds of provisions. One that I
think you are all familiar with is density transfers. It’s the most obvious one of all.
Every planning and zoning commission, every town, every county in this country does
density transfers. It basically says to a landowner, “We’ll give you more density on the
south forty in exchange for your commitment to preserve open space on the north forty”.
It’s been done traditionally for aesthetic reasons. But I think you can see the
implications. It’s a marvelous tool for preserving habitat. For those of you from southern
California, we are currently at work in a really impressive effort being driven by
California’s local governments and the Fish and Wildlife Service to preserve the
Gnatcatcher habitat in southern California. Density transfers will be a big part.
If you make your way through all of those and you still don’t have something to
work with, you can look at land exchanges. The Department of the Interior has 500
million acres of land. I am not claiming that its all sacrosanct; only 499 million. But
that’s a land bank from which we can, if we get into a corner where these other tools
don’t work, we offer a land exchange. And we are doing that right now in southern Utah,
in Nevada and elsewhere. It’s been done in Florida too. It was a great benefit in Great
Cypress where we picked up 100 thousand acres of land in exchange for 100 acres of land
in downtown Phoenix. It was a terrific deal for everyone. If that doesn’t work, and there
is a manifest, looming injustice, we can simply say, ‘we’d like to buy your land’. An
example of that is Austin, Texas. As I speak here tonight, Austin, Texas is going to a
bond election next week to determine the future of one of the most exceptional habitat
conservation plans that has ever been worked out in this country. The basic problem
there is a bird; the Gold Cheeked Warbler. These birds are extraordinary critters. They
tend to get backed in to these evolutionary nitches where they are dependent on a single
tree, a single food source. They are not very movable. And the problem in Austin, for
those of you who have not been there, is that the highlands, the country to the west, the
old LBJ hill country is the birds most desirable place. The birds and the people both
want to live in exactly the same place. Go east of Austin to Siberia, the Sahara; there’s
nothing but space! But the birds and the people want to go to the hills on the Balconni’s
Escarpment. The question then becomes, ‘can we sort it out’? The people of Austin are
going to make that decision in about a week. What I have said in Austin to the people is,
“If you vote that bond issue, we’ll throw in another five million dollars to do our share of
land purchases that are necessary to make this work”. Obviously, money is in scarce
supply, but there are times when it is appropriate.
Lastly, just a few thoughts about why it is you keep reading all of these stories
about hardships. The system isn’t perfect, and the most difficult case is the small
landowner. The big ones who can use density transfers, land exchanges and all of these
things are easy. The tough one is when we get a small landowner who is on a strategic
piece of property. Their complaint usually comes because of the transition. When a
species is listed under the terms of the Endangered Species Act, there is an effective
freeze across that habitat occupied by that species. It usually takes us two or three years
to construct the habitat conservation plan, which will begin to free the land up. And the
kind of Reader’s Digest story that you read is always about the small landowner who is
caught in the regulatory freeze, until we get the conservation plan together. It is true that
between listing, the promulgation of that plan, the law does sort of say, ‘proceed at your
own risk’. That’s the area where we’ve got to start making some improvements. That’s
what you’ll be hearing from us on in the coming year. And as I’ve said to the FWS,
“shorten that freeze to reduce to a bare minimum the inconvenience on the guy who is
saying that he’d like to clear an acre to build a house for his mother-in-law. Or, the guy
who wants to cut down some trees for a horse arena, whatever it may be. We can handle
those by inventing some new concepts. I think for example, we could have a kind of
transition habitat plan where we can use the provisions of Section 7. “I am doing what I
do best”, which has become pedantic.
I sound like I am in front of a law school class, so I’ll wrap it up right there, and say that
the message that comes out of all of this is that the Endangered Species Act is not the
problem. The problem is that the people who have been charged with administering the
Act, haven’t explored, with imagination or creativity the range of possibilities. And the
way it is, it’s a wonderfully expansive Act and it’s much better for us to proceed that
way, than to get backed in to these incredible ideas that you are going to legislate financial
remedies for land owners. If you have some sort of statutory formula, think of the
litigations and speculative land purchasers on the landscape. There would never be
enough money in the history of the world, if every time the government makes a
regulation somebody gets paid. We recognize the 5th Amendment. We recognize the need
to do these mitigation habitat preservation schemes. The burden is on us to make things
easier for people. I think we have, and will continue to do that. And against that
background, when the time comes, we will be up there saying that the Endangered Species
Act is an extraordinary piece of legislation. It’s not the deficiencies in the Act. It’s the
willful failure of public officials to use the Act. And I believe deeply, that we can
preserve the incomparable biodiversity of this American landscape. We can accommodate
a reasonable expectation of any landowner. All we have to do is think together and adopt
an ethic of living a little more lightly on the land; understanding that we can’t separate
nature from our daily activities. Empty spaces have disappeared. The days when you
can say, “We’ll put up a little park out there and post a Ranger” are gone. We’re all in
these ecosystems and we have to begin to think of ourselves as inhabitants of those
systems. And we must begin to live and think accordingly. Thank you.

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SECRETARY OF THE INTERIOR BRUCE BABBITT
SPEECH ON THE ENDANGERED SPECIES ACT
OCTOBER 22-24, 1993 DURHAM, NC
TO THE SOCIETY OF ENVIRONMENTAL JOURNALISTS
INTRODUCTION: It is my privilege and my pleasure to introduce to you the Secretary
of the Interior of the United States the Honorable Bruce Babbitt.
MR. BABBITT: Thank you very much. It’s a pleasure to be here. And I’m going to
make a confession at the outset. My intention today really not to make any news. I
think some of you will understand that. I ran for President a few years ago and upon
hearing that I am speaking to several hundred journalists with the intention of not making
any news, I assume not much doubt about why I got out of the race very early, back in
1988. But what I want to do is see if I can, at the risk of being a little bit pedantic, talk
about some of these larger issues; especially the Endangered Species Act, and the shape of
the debate that I think is coming at us well in advance of the eventual reauthorization
timetable of the Endangered Species Act.
The reason I selected this topic is because I have been up on Capital Hill in the
last several months, pushing what I thought was a remarkably uncontroversial,
uneventful, plain-vanilla, scientific institution called the National Biological Survey. I
think a scientific innovation of great importance to the future of the country, and one,
which I have been at pains to characterize as a scientific institution, if you will, the
biological analogue of the United States Geological Survey. I went up to Capital Hill
ready to say, ‘When was the last time anybody heard of a controversy involving the
United States Geological Survey?’ and here I have its biologic counterpart. All of a
sudden I am sitting in a committee locked in crossfire with your luncheon speaker trying
to think, ‘I know these Congressmen from the south are canny and he must see something
in this institution that I don’t.’ This, as they are busy sort of loading it down with
amendments including an amendment prohibiting the use of volunteers by the National
Biological Survey. Then I started thinking about it and it became clear very quickly. I
called him up and I said, “Mr. Hayes, you’re a tricky, no-good devil! What you’re doing
is using my Bill as the stage for a dress rehearsal debate about the Endangered Species
Act!” He sort of smiled and said, “That’s exactly what I’m doing!” So that brings me
here today to take the bait, if you will, and to talk about the Endangered Species Act and
what those issues are and what I think our response is.
The Endangered Species Act, undeniably, is the most innovative, wide reaching,
and I believe, successful environmental law that has been passed or enacted in the last
quarter century. In 1993, this year, it is precisely twenty years old in it’s modern form
and I believe it has been remarkably successful. I can site case after case of resurgence of
and rebirth of the American Alligator, the fact that the skies are now once again graced by
many Bald Eagles, the Peregrine Falcon; now moving from near extinction to the threshold
of de-listing. There are many, many exception stories, including not in the least, the
forest plan that has now been worked out in the Cascade Forest ecosystem in the Pacific
Northwest.
The opponents of the Endangered Species Act understand those successes and
those facts. So they have kind of come at us from a difference direction. There is now a
collection of different groups assembled under a tent, who are advocating a new concept.
It’s called Taking Doctrine. And that’s what you are going to be hearing next year. It’s
this notion that what the Endangered Species Act is really about unconstitutional,
uncompensated, taking of private property. If you want to see the dry run of what that
argument is going to look like you need to dig up a Bill call HR-1388, which is styled as
the Just Compensation Act of 1993. I recommend that you have a look at it, because this
is where it’s coming from. It’s a pretty simple Bill. It says that it would require any
federal agency to compensate owners from private property, and I quote; “for any
diminution in value”, close quote, caused by any regulatory action taken under designated
environmental laws. There is a little list of them, and right at the top is Endangered
Species. So what they are saying is ‘Secretary of the Interior, henceforth, when under the
Endangered Species Act takes any regulatory act of any kind, which causes any
diminution in value of any kind of property, much dip into the public treasury and begin
paying, under the mechanism specified in that Bill for any diminution in the value of any
kind of property; real property or any other property. I was pondering that the other
night and I thought that I needed some examples of what these folks are advocating. The
first example I came to is the Kesterson National Wildlife Refuge in California. Some of
you may remember that a few years ago, Kesterson, which is one of the great migratory
bird stops on the Pacific flyway, had a problem. The waterfowl were dying. They were
deformed at birth. There were all sorts of strange things happening. It turned out that
there was selenium poison, which was running into the wildlife refuge from irrigation tail
water being put into the refuge as drainage water from an agricultural area. Obviously,
under the Endangered Species Act, I am mandated to take some regulatory action against
what was happening at Kesterson. My regulatory act is as follows; clean up the
pollution or we’re going to sue you. It’s real simple. What this act would say surely and
simply is by saying, “stop the pollution” what am I doing? I am undeniably causing a
diminution in value of a property right. It’s going to cost those farmers money to stop
the selenium flow into that National Wildlife Refuge. And under the literal, exact terms of
this Bill they’ll comply but they’ll send me the bill for their clean up actions. That’s
exactly what these folks have in mind when they are talking about “takings”. They are
saying, ‘we don’t like environmental laws. And if they inconvenience us, we’re going to
send you the bill and ask the public to pay.’ I guess what I would say, rather than the old
legal maxim, “make the polluters pay”, what they are saying is that ‘it pays to pollute
because the government will reimburse your costs’.
Those of you who have covered the Everglades in Florida, I think can readily see
another implication of this Bill. The issue in the Everglades is phosphate contaminated
drainage water, which is causing nutrification of the Everglades and a corresponding
decline in the productivity of the fish resource, the decline of the Snail Kite which is
linked to some of those resources and a variety of other endangered species. What is my
regulatory action in the Everglades? It is a message to the sugar companies, “Stop, clean
it up!” That message is being sent right now in the form of an action in the United States
District Court. Okay, if this Bill passes, what happens? Sugar growers go into federal
court and say, ‘you better dismiss this lawsuit because we’re not paying anything! Sure,
we’ll clean up the phosphate, but they Interior Department gets the bill because we’ve
been inconvenienced. If you make us clean this up, we’ll have a little less profit next year
and that is a diminishment in value of our property’. I could give you a lot of other
examples, but I’ll stop right there. You can see my point.
If they get away with this kind of reversal of environmental history, start thinking
about what happens after that. Pretty soon they are going to be over at the EPA saying
that when chemical companies incur losses when pesticides found to cause cancer are
banded, what happens; well, the chemical companies will send their bill to the
government. When the federal Food and Drug Administration takes a breast implant off
of the market they will send a bill to the FDA saying, ‘hey, we lost money as the result
of a regulatory action!’ When the Federal Aviation Administration refuses to certify a
defective aircraft engine; where do you stop?
The fact is that our society has had a fundamental premise; and that is that
regulatory action, taken for a valid public purpose can have consequences that
inconvenience people. In fact, from time to time, they do diminish someone’s rights in
the public interest. The most interesting example I can think of, that I would start with,
is planning and zoning. Think of this one: suppose that the Washington, D. C. City
Council, that notable repository of wisdom and governmental skill, decides to zone a
corner lot in my neighborhood for a strip shopping center. I’ve got to tell you that
happens every day in every community in this country. What happens when they zone
that lot? They convert some value on a lot owner on that corner, at the same time as they
diminish the value of my residence, which is half way down that block. It has never, to
my knowledge, in the history of America been advocated that a zoning decision, which
creates a marginal increase in value at the admitted expense of someone else’s property
rights; my residential right, that that act gives me a right to compensation. Think of the
consequences, if that is the law in the United States of America! There would be chaos!
I’d round up 200 neighbors and be down in front of the Treasury saying, “Compensate
me!” Maybe we should have a tax on the people whose land is increased in value and
have a redistributionist scheme, which says ‘all winners compensate all losers every time
a road is built, a neighborhood is rezoned’. Do you see what I am getting at? It’s a way,
a pernicious way, of simply saying that ‘we are going to destroy the efficacy of
government’.
I can hear my good friend Mr. Hayes, I can hear him right know saying, ‘Bruce,
you exaggerate. You’re another one of those slick, big city lawyers pointed out all sorts
of hypotheticals’. Well, well and good! I guess he’d say that environmental regulation is
different from all of those cases I used. Maybe he would say that an environment
regulation is a special case. It’s new in American history and we’ve got to hold it to a
higher standard. But is environment regulation really that much different? Think about it;
is it really different from the kind of action that the D. C. City Council takes every day in
my neighborhood? I’d submit that environmental regulations, just like planning and
zoning have the function of protecting the larger interests of the community; air, water,
open space, whatever you want. Inevitably, on the margin, there are some winners and
some losers. I think of an example that comes from my own hometown; Flagstaff,
Arizona. It’s a really special, extraordinary place, located high in the ponderosa forests of
northern Arizona. The Flagstaff City Council, using it’s zoning powers about ten years
ago, passed a law saying that in the city limits of Flagstaff, Arizona it is a crime to cut
down a pine tree on private land, unless that pine tree is removed to make way for an
authorized improvement pursuant to the building code and the zoning laws. Now, the
response in Flagstaff, Arizona to that law, a zoning law, which I submit is preeminently
an environment law, was very positive. The residents of that community said, ‘that’s an
environmental law that works to our manifest advantage. That’s why people come to
this town!’ You walk in and you can smell the perfume of the pine forest in the air.
Everywhere you turn there is this extraordinary horizon, and it’s perfectly reasonable for
the benefit of the entire community to create habitat values to protect the wildlife and to
protect the overall image of this town. And admittedly, it will subtract from the freedom
of a landowner who says that he has ‘every constitutional right to saw down every pine
tree on his lot, and to hell with the world’! The city council is saying, “no you don’t.
You use your property in a reasonable fashion and realize an economic use. But in the
name of the overall environment of this town, we are going to post some restrictions of
landowners’. The good residents of the town of Flagstaff have accepted that and the
courts in Arizona, which is not a notably aggressive State in these kinds of things has
said, ‘yes, that’s fine’. Palmdale, California has done it with Joshua trees. Arizona limits
your right to remove cactus from state lands. Massachusetts has, under it’s zoning code a
set back requirement on every stream and waterway in the state. Those are imposed by
local governments, under zoning authority. But they are manifestly environmental
regulations.
Of course, I think you now see where I am headed. That’s really what the
Endangered Species Act is about. It’s not a land use law. It’s a law that says that we are
going to protect public property; wild, endangered species. But it is a law, which
acknowledges in many, many cases the only efficacious way to protect an endangered
species is to protect the habitat. It is undeniable that the Endangered Species Act, in
operation with it’s focus on habitat, is going to limit the ability of some landowners in
some places to do anything they want; to raze the forest, to bulldoze the habitat, to dry
up a stream which contains an endangered species. The question then becomes, ‘what are
the restrictions like?’ And when are you entitled to compensation. I did a little research
about that because I thought listening to my friend Mr. Hayes and others, that I’d be able
to find some cases of egregious abuse. I thought, “It seems to me unlikely that
Mannie Luhon and Don Odell and Jim Watt were really out there pushing this Act,
driving people into the courts to protect against their overzealous administration”. I
thought I’d have a look. So I marched some of my folks over to the Court of Claims,
where there are hundreds of takings cases of all kinds being filed in waves of protest, and I
said, “what about the Endangered Species Act?’ Do you know what I found? I found
that in the twenty years of this Act, in it’s modern form; there has not been a single case
in a Court of Claims alleging a taking under the Endangered Species Act. I want all of
you, when you are talking with Mr. Hayes next time, to sort of stuff that one in his craw,
and see what he says!
The fact that in twenty years, we’ve listed some 800 species, put up habitat
preservation plans, spent a thoughtful and reasonable amount; this has never created a
takings case in the Court of Claims is to me really not the end of the inquiry. And I’ll tell
you why. It’s not just about whether or not unconstitutionally taken someone’s
property. No one has yet alleged any case. Constitutional standard for a taking, I think,
is subject to debate and discussion, coming out of the Lucas cases. You have to
substantially deprive of any reasonable use of their property. You’ve really got to shut
them down. But I would agree with the critics that this is hardly the appropriate
standard for the elected representatives of the public, the Clinton administration and its
mandarins to be bragging about, saying, “Well, we’ve never committed a constitutional
take.” It seems to me that the standard ought to be higher. We ought to be held to a
standard of reasonables. We ought to be able to demonstrate that we are administering
this law in a way that is sensitive and that isn’t imposing hardship on people. And that
we have stopped short, not only of a constitutional taking, but we actually are
administering this Act in a sensible way which does not inflict unnecessary inconvenience
and hardship on the citizens who put us in office. What I would submit and will submit,
as this debate begins, is that we’re doing a pretty good job of it. And the reasoning is that
across the last twenty years we have begun to devise some pretty innovative approaches
to this issue of taking steps to preserve habitat on public and private lands without
shutting down private landowners. The first step as we go through this process in any
kind of situation is to ask a simple question. Are there public lands available that we can
use as the core of the protection scheme? Public land, owned by all of us, where there is
no taking question. We’ve been fairly successful at that. You go to California and ask
people about the California Spotted Owl. Have any of you have written stories about the
California Spotted Owl? No, you know why? It turns out that by good fortune, it turns
out that the habitat is mostly public land, about 99% up in the Sierra Nevada in northern
California. Nobody is squawking. That is gratuitous and nice. Whenever we can that, we
do. In all cases for this public land we try to construct plans that say that the public land
is going to carry the burden of the management load. That’s been done in the Pacific
Northwest with the Spotted Owl controversy there. The management plan that has come
out for the northwest has stronger provisions for public land because that enables us to
tread a little more lightly on the private land owned by individuals and the timber
companies; the habitat conservation rules outside the core areas; rest a little more light as
a result on the public lands. Another approach that we’ve used that I think you are going
to see a lot more of is the flat out mitigation. A good example of this is the Desert
Tortoise, which is found in the Great Basin of Nevada, California and Arizona. Several
years ago the city fathers of Las Vegas, which is a boom-town if there ever was one,
discovered that all subdivision land had already been taken by the Desert Tortoise; he got
there first. They came to us and said, “What are we going to do?” We worked out an
interesting plan. We said to the developers, “As you bulldoze tortoise habitat for
subdivisions, we will levee a surcharge on each lot; just like a surcharge for water, sewer
or roads. We’ll put it in a back account and we’ll use it for mitigation.” We would go out
a little further out and buy up the private lands that are in holdings in the public domain
and set up tortoise reserves. Your mitigation will just be a surcharge like any other type
of infrastructure charge, and we’ll use it to protect land in the out back. It’s concept
that’s been used in California on the Monterey Peninsula and a lot of other places. It’s a
way of saying to private property owners that we can rearrange the protection landscape
in a way that makes sense; you’ll see a lot more of it. There are some other cases where
just management changes work. The best example I can give you of that is the Red
Cockaded Woodpecker, which hangs out in the neighborhood around here and all across
the south. It’s a more manageable bird than the Spotted Owl because it has interesting
characteristics. It’s very picky about where it lives. It has to have an old growth tree.
But its quite eclectic about it’s dining habits. It eats all kinds of different things. And it’s
not at all picky about its neighbors. It doesn’t have high standards the social company.
You’ll find them living on golf courses, in back yards; all you have to do is make sure it’s
got good shelter and the supermarket is not too far away. For those of you who are
interested in these things, it also has excellent family values. It’s a monogamous critter.
They stay together and the young ones stick around to help raise the next generation. It’s
really an admirable bird. It’s one worthy of preservation. It turns out that given these
characteristics we were able to go to Georgia Pacific, for example, and work out a simple
little plan whereby Georgia Pacific in exchange for a favorable response from an
overbearing Department of the Interior, says that they have constructed a plan where our
biologists move out ahead of the logging crews, identifying the old growth woodpecker
trees and keep a little; very modest habitat circle around that tree. They estimate that this
procedure will impact maybe one percent of their timberland. And again, in light of the
background rules and regulations; regulating for the common good seems to me to be
pretty reasonable. It seems pretty reasonable to Georgia Pacific. You’ll see them down
here running television ads, bragging about it. I think they should, because they are a
living example of how we can solve problems.
For those of you who are from Texas, we’ve had a quite extraordinary result in a
place called the Edwards Aquifer. This is one that looked like a train wreck in the making.
The politicians were going wild. It turns out that along the Balconni’s Escarpment down
in central Texas, there are a bunch of really marvelous springs that give rise to the
headwaters of these rivers that run southeast down to the Gulf of Mexico. As fate would
have it, in these large pools there are a few, fairly uncharismatic critters living at Great
Gap, including one, which is called the Blind Texas Salamander. And I’ll tell you, it really
looked like a disaster because people were running for office and it’s going to be people,
or the Blind Texas Salamander. It’s going to be future for Texas, or, turn in over to cave
dwelling, invertebrates and blind salamanders! We got into this and took a careful look.
What was happening was that the pumping up outside of San Antonio was lowering the
groundwater table and drying up those pools. We had a careful look. We used the USGS
and others. It turned out that what Texas really needed was a groundwater management
program. So we sat down with local governments. We went up to the Texas legislature
with Governor Richards. And in a sort of quiet, thoughtful process, the Texas legislature
passed the first groundwater management law in its history, over the cries of the few
lonestar legislators who said that this was Leninism on the run in Texas! The Legislature
passed it. It’s had the incidental effect of preserving the water levels and insuring that
San Antonio’s water supply will be a lot more secure than it would have been in the
failure to limit over drafting.
This is just another interesting example of the flexibility of this Act. It is a broad
shouldered act that accommodates a lot of interesting kinds of provisions. One that I
think you are all familiar with is density transfers. It’s the most obvious one of all.
Every planning and zoning commission, every town, every county in this country does
density transfers. It basically says to a landowner, “We’ll give you more density on the
south forty in exchange for your commitment to preserve open space on the north forty”.
It’s been done traditionally for aesthetic reasons. But I think you can see the
implications. It’s a marvelous tool for preserving habitat. For those of you from southern
California, we are currently at work in a really impressive effort being driven by
California’s local governments and the Fish and Wildlife Service to preserve the
Gnatcatcher habitat in southern California. Density transfers will be a big part.
If you make your way through all of those and you still don’t have something to
work with, you can look at land exchanges. The Department of the Interior has 500
million acres of land. I am not claiming that its all sacrosanct; only 499 million. But
that’s a land bank from which we can, if we get into a corner where these other tools
don’t work, we offer a land exchange. And we are doing that right now in southern Utah,
in Nevada and elsewhere. It’s been done in Florida too. It was a great benefit in Great
Cypress where we picked up 100 thousand acres of land in exchange for 100 acres of land
in downtown Phoenix. It was a terrific deal for everyone. If that doesn’t work, and there
is a manifest, looming injustice, we can simply say, ‘we’d like to buy your land’. An
example of that is Austin, Texas. As I speak here tonight, Austin, Texas is going to a
bond election next week to determine the future of one of the most exceptional habitat
conservation plans that has ever been worked out in this country. The basic problem
there is a bird; the Gold Cheeked Warbler. These birds are extraordinary critters. They
tend to get backed in to these evolutionary nitches where they are dependent on a single
tree, a single food source. They are not very movable. And the problem in Austin, for
those of you who have not been there, is that the highlands, the country to the west, the
old LBJ hill country is the birds most desirable place. The birds and the people both
want to live in exactly the same place. Go east of Austin to Siberia, the Sahara; there’s
nothing but space! But the birds and the people want to go to the hills on the Balconni’s
Escarpment. The question then becomes, ‘can we sort it out’? The people of Austin are
going to make that decision in about a week. What I have said in Austin to the people is,
“If you vote that bond issue, we’ll throw in another five million dollars to do our share of
land purchases that are necessary to make this work”. Obviously, money is in scarce
supply, but there are times when it is appropriate.
Lastly, just a few thoughts about why it is you keep reading all of these stories
about hardships. The system isn’t perfect, and the most difficult case is the small
landowner. The big ones who can use density transfers, land exchanges and all of these
things are easy. The tough one is when we get a small landowner who is on a strategic
piece of property. Their complaint usually comes because of the transition. When a
species is listed under the terms of the Endangered Species Act, there is an effective
freeze across that habitat occupied by that species. It usually takes us two or three years
to construct the habitat conservation plan, which will begin to free the land up. And the
kind of Reader’s Digest story that you read is always about the small landowner who is
caught in the regulatory freeze, until we get the conservation plan together. It is true that
between listing, the promulgation of that plan, the law does sort of say, ‘proceed at your
own risk’. That’s the area where we’ve got to start making some improvements. That’s
what you’ll be hearing from us on in the coming year. And as I’ve said to the FWS,
“shorten that freeze to reduce to a bare minimum the inconvenience on the guy who is
saying that he’d like to clear an acre to build a house for his mother-in-law. Or, the guy
who wants to cut down some trees for a horse arena, whatever it may be. We can handle
those by inventing some new concepts. I think for example, we could have a kind of
transition habitat plan where we can use the provisions of Section 7. “I am doing what I
do best”, which has become pedantic.
I sound like I am in front of a law school class, so I’ll wrap it up right there, and say that
the message that comes out of all of this is that the Endangered Species Act is not the
problem. The problem is that the people who have been charged with administering the
Act, haven’t explored, with imagination or creativity the range of possibilities. And the
way it is, it’s a wonderfully expansive Act and it’s much better for us to proceed that
way, than to get backed in to these incredible ideas that you are going to legislate financial
remedies for land owners. If you have some sort of statutory formula, think of the
litigations and speculative land purchasers on the landscape. There would never be
enough money in the history of the world, if every time the government makes a
regulation somebody gets paid. We recognize the 5th Amendment. We recognize the need
to do these mitigation habitat preservation schemes. The burden is on us to make things
easier for people. I think we have, and will continue to do that. And against that
background, when the time comes, we will be up there saying that the Endangered Species
Act is an extraordinary piece of legislation. It’s not the deficiencies in the Act. It’s the
willful failure of public officials to use the Act. And I believe deeply, that we can
preserve the incomparable biodiversity of this American landscape. We can accommodate
a reasonable expectation of any landowner. All we have to do is think together and adopt
an ethic of living a little more lightly on the land; understanding that we can’t separate
nature from our daily activities. Empty spaces have disappeared. The days when you
can say, “We’ll put up a little park out there and post a Ranger” are gone. We’re all in
these ecosystems and we have to begin to think of ourselves as inhabitants of those
systems. And we must begin to live and think accordingly. Thank you.